Williams v. Curchin ( 1930 )

Pee Cueiam.

This ease was tried at the Monmouth Circuit. The plaintiff Lillian R. Williams had judgment for $10,146. A verdict of no cause of action was directed against her husband, Daniel L. Williams. The case grew out of a crossroads accident, Daniel L. Williams was driving a Packard ear, in which his wife was riding easterly on Squankum road. The defendant William Curehin, employed by S. S. Thompson & Company, was driving in a northerly direction on the New Bedford road which crossed the Squankum road. Williams was familiar with the road on which he was traveling at twenty-five to thirty miles an hour. Although he was approaching an intersection his vision to the right was obscured by shrubs and bushes, he at no time applied either the emergency or foot brake. There is testimony that he turned to the left to get out of the way of Curchin’s car. But at all events, his wife was either thrown out by the impact, or by the way in which he pulled his car around to avoid the collision.

The defendants’ sole point is that the trial judge refused the following request: “If you find that the negligence of Mrs. Williams’ husband was the proximate cause of her injuries she cannot recover.” This request is somewhat similar to a request in Garino v. Walker, 147 Atl. Rep. 779. The distinction between the two cases is in the whole charge as given. In the present case, the charge as a whole indicates very clearly the issue submitted to the jury. The trial court charged substantially as requested, saying in part: “Whether Mrs. Williams can recover is submitted to you to determine as a fact under the rules of law that I will give you. And therefore I may say that she carries the burden of satisfying you under a fair preponderance of the proof that Curchin was negligent, with the direct and proximate result that a collision occurred and she was injured. * * *

“And therefore, if she has established to your satisfaction under the fair preponderance of the proof that Curchin was negligent, that is to say, that he failed to exercise the care of an ordinarily and reasonably prudent person, the contributory negligence of her husband would not be chargeable or imputable to her and she can recover against the defendants.”

It seems to us from the foregoing that the jury must have understood that there could be a recovery only if the proofs established that the proximate cause of the injury was Cur-chin’s negligence.

The judgment below is affirmed.